Judge supports accident charge

Dustin Lund will face misdemeanor charge of careless driving

The 14th Judicial District Attorney's Office filed the appropriate charge against a man involved in a fatal accident, a judge determined Wednesday.

Routt County Court Judge James Garrecht made the ruling despite requests from the victim's family for a harsher charge.

Garrecht made the ruling after hearing two hours of testimony.

Craig resident Jordan Bailey, 18, filed a motion to have Garrecht review the case in an attempt to compel Assistant District Attorney Kerry St. James to file a more severe charge against Dustin Lund of Morrison. Lund, 37, was involved in a February 2006 accident that killed Bailey's father, 43-year-old Michael Bailey.

Lund allegedly was under the influence of methamphetamine when he reportedly fell asleep while driving on U.S. Highway 40 near Hayden and hit Bailey's Ford F-250, which was traveling west.

Lund is facing a misdemeanor charge of careless driving resulting in death. Lund's case is scheduled for disposition March 7.

During the hearing Wednesday, Garrecht explained to the courtroom of attorneys, Colorado State Patrol troopers, Bailey's family and an investigator, that he had never participated in such a hearing because they are so rare.

In essence, Garrecht was asked to determine whether the DA's Office had acted "arbitrarily or capriciously" in filing the charge it did. Usually such hearings are held when the prosecution refuses to file a charge at all, not when the victim's family challenges the appropriateness of a charge.

"My job is not to substitute my judgment for the judgment of the people," Garrecht said. "As long as what the DA has done isn't arbitrary or capricious, I can't substitute my judgment for theirs."

The controversial case reached this point after St. James received information that Colorado State Patrol troopers seized Lund's blood samples and operated logs illegally. Because the evidence was seized illegally, the DA could not pursue more severe charges because the blood samples and driving logs wouldn't be admissible in court.

"The prosecutor is the servant of the law," St. James said. "Guilt and suffering shall not escape and while we are at the liberty to deliver hard blows, we are not at liberty to strike foul blows."

Joe DeAngelo, chief investigator for the 14th Judicial District, presented an in-depth analysis to Garrecht outlining why the DA's Office and several independent reviews of the case by other attorneys in the state resulted in the same conclusion.

"The Colorado Bar Association says a prosecutor shall refrain from prosecuting a charge that is not supported by probable cause," he said. "Looking at state statutes, case law and probable cause, at best, a jury would hear the alleged acts of (Lund's) bad driving during a 1.5 hour period, and that he appeared 'fine' at a delivery."

Kris Hammond, Lund's attorney, agreed if the case went to trial "the defense would prevail" on a motion to suppress Lund's blood tests and driving records because of the illegal seizure.

Michael Bailey's sister, Kathy Oberwitte, said she will continue to pursue a recall effort to oust Roesink from office.

"The decision made (Wed--nesday) has no effect on the recall," she said. "It may take a different direction, but the community has spoken out and the voice of the people needs to be heard."